Public interest law firm calls on 14 states to roll back certificate of need laws

By Derek Draplin | The Center Square

The Pacific Legal Foundation says states should temporarily suspend their certificate of need laws to better help medical professionals respond to the COVID-19 crisis.

The libertarian-leaning public interest law firm says 36 states have CON laws, and 22 states have rolled back their CON laws in some way to help combat the virus’ spread.

That leaves 14 states that have yet to relax their CON laws, according to the group. Arizona, Florida, Illinois, Kentucky, Nevada and Ohio are among states that have yet to suspend their CON laws.

“If we can toss [CON laws] out right now – and there’s plenty of reason to do so – it should also apply in any other circumstance,” said Angela Erickson, strategic research director for PLF.

The laws generally require hospitals to seek certification for the new or added medical services with a state agency, a process that can be disputed by other certificate holders. When disputed, hospitals must demonstrate a “need” for the services, a practice the foundation says amounts to a “competitor’s veto.”

The most common example during the COVID-19 crisis has been states waiving CON laws that restrict the number of hospital beds each facility can operate.

“This anti-competitive requirement is irrational under any circumstances, but it is especially harmful during a pandemic, when medical providers must be free to adapt to quickly changing circumstances,” the organization says.

The organization is currently suing Kentucky for requiring a non-emergency ambulance company to have a CON for transporting non-emergency patients.

Phillip Truesdell of Aberdeen, Ohio, who owns the company, often transports patients across the border to Kentucky, but their laws bar Truesdell’s business from transferring patients back to Ohio.

Image courtesy of U.S. Navy/Public domain
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